People v Louis (Harry)
Annotate this CaseDecided on March 22, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PRESENT : PESCE, P.J., GOLIA and RIOS, JJ
2005-339 K CR.
The People of the State of New York, Respondent,
against
Harry Louis, Appellant.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Suzanne M. Mondo, J.), rendered February 18, 2005. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree, attempted endangering the welfare of a child, and harassment in the second degree.
Judgment of conviction affirmed.
In this nonjury trial, the court, at the conclusion of the People's case, denied defendant's motion to dismiss the accusatory instrument for failure to establish a prima facie case. At the conclusion of the trial, the court found defendant guilty of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]), attempted endangering
the welfare of a child (Penal Law §§ 110.00, 260.10 [1]) and harassment in the second degree (Penal Law § 240.26).
On this appeal, defendant contends that as to his conviction of attempted assault in the third degree, the evidence was legally insufficient to establish the element of intent to cause physical injury and, alternatively, that the verdict as to said count was against the weight of the evidence. As to his conviction of attempted endangering the welfare of a child, defendant contends that the evidence that he argued with the child's mother in front of the child and struck the mother causing a cut to her lip was insufficient to establish his guilt, that the accusatory instrument as to said charge was facially insufficient in that it failed to allege that he knew the child was present when he committed the acts, and that attempted endangering the welfare of a [*2]child is a nonexistent crime.
The standard for appellate review of the legal sufficiency of the evidence is "whether any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder on the basis of the evidence at trial, viewed in the light most favorable to the People" (People v Williams, 84 NY2d 925, 926 [1994]; People v Contes, 60 NY2d 620 [1983]; People v Antwine, 33 AD3d 215 [2006]).
A person is guilty of attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]) when, with intent to cause physical injury, he engages in conduct which
tends to cause such injury to such person or third party. In order to establish an attempt, the People must prove that defendant's conscious objective was to commit the specific offense, assault in the third degree, and that he engaged in some affirmative act to carry out said objective (see Penal Law § 15.05 [1]; see also People v Coleman, 74 NY2d 381, 383 [1989]; People v Bracey, 41 NY2d 296 [1977]).
It is well established that a defendant may be presumed to intend the natural and probable consequence of his actions (see People v Getch, 50 NY2d 456, 465 [1980]; People v Walker, 30 AD3d 215 [2006], lv denied 7 NY3d 796 [2006]) and that intent "can be inferred from the totality of the conduct of the accused" (People v Horton, 18 NY2d 355, 359 [1966], cert denied 387 US 934 [1967]; People v Roman, 13 AD3d 1115 [2004]). Here, the testimony of the emergency medical technician, that he observed defendant pulling and tugging at the victim and shortly thereafter punch her in the mouth, together with the testimony of the victim and the photographs admitted into evidence, was legally sufficient to establish the element of intent to cause physical injury (see People v Mahoney, 6 AD3d 1104 [2004], lv denied 3 NY3d 660 [2004]). In addition, upon the exercise of our factual review power, we are satisfied that the verdict as to said count was not against the weight of the evidence (see CPL 470.15 [5]).
Defendant's contention that the evidence was legally insufficient to establish the crime of attempted endangering the welfare of a child since the People failed to
establish that he should have known that his conduct was likely to be injurious to the welfare of the child was not preserved for appellate review. Defendant's motion to dismiss for failure to establish a prima facie case did not specifically address said argument (see CPL 470.05 [2]; see also People v Gray, 86 NY2d 10, 20 [1995]; People v Romano, 199 AD2d 433 [1993], lv denied 83 NY2d 809 [1994]). In any event, the evidence presented, when viewed in the light most favorable to the People, was sufficient to establish defendant's guilt of attempted endangering the welfare of a child beyond a reasonable doubt. The child, who was approximately two and one-half years old at the time of the incident, witnessed her father strike her mother on her mouth with his hand. The testimony at trial further established that the striking of the child's mother was deliberate and that the child became upset and started to cry. Based on the foregoing, the evidence was legally sufficient to establish that defendant knowingly engaged in conduct likely to be injurious to the physical, mental or moral welfare of the child (see Penal Law §§ 110.00, 260.10 [1]; see also People v Hitchcock, 98 NY2d 586 [2002]; People v Johnson, 95 NY2d 368 [2000]).
Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient [*3]on its face when it substantially conforms to the requirements of CPL 100.15, and when the factual allegations (together with any supporting depositions which may accompany it) provide reasonable cause to believe that the defendant committed the
offense charged in the accusatory part of the instrument, and the nonhearsay allegations of the factual part of the information and/or any supporting depositions establish, if true, each and every element of the offense charged and defendant's commission thereof. The law does not require that the precise words or phrase which most clearly express the thought be used in an information, but only that the crime is alleged and the specifics set forth so that a defendant can prepare himself for trial, and that he will not be tried again for the same offense (People v Zambounis, 251 NY 94 [1929]; People v Shea, 68 Misc 2d 271 [1971]). Here, the fair implication of the allegation in the factual part of the information, that in front of 770 New York Avenue defendant hit the child's mother in the mouth with his hand "in the presence" of their two-and-one-half-year-old child, was legally sufficient to establish, if true, that defendant, knowing the child was present, engaged in conduct likely to be injurious to the physical, mental, or moral welfare of a child less than seventeen years old (Penal Law §§ 110.00, 260.10 [1]; see People v Casey, 95 NY2d 354, 360 [2000]; see also People v Hitchcock, 98 NY2d 586, supra; People v Johnson, 95 NY2d 368, supra; People v Reisman, 29 NY2d 278, 285 [1971]; People v Alexander, 149 Misc 2d 361 [1990]).
Defendant's contention that attempted endangering the welfare of a child is a nonexistent crime is without merit as said argument was previously rejected by this court (see People v Vargas, 8 Misc 3d 113 [2005], lv denied 5 NY3d 795 [2005]).
Defendant's conviction of harassment in the second degree is left undisturbed in the absence of any issue raised with respect thereto.
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: March 22, 2007
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